For lack of hard evidence, a terrorist evaded capture

Network News

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

What happened next is haunting, in light of subsequent events: The CIA concluded that it could not assist the Yemenis in locating Aulaqi for a possible capture operation. The primary reason was that the agency lacked specific evidence that he threatened the lives of Americans -- which is the threshold for any capture-or-kill operation against a U.S. citizen. The Yemenis also wanted U.S. Special Forces' help on the ground in pursuing Aulaqi; that, too, was refused.

Even if the CIA had obtained hard evidence in October that Aulaqi was a threat, and Special Forces had been authorized for a capture operation, permission from the National Security Council would have been needed. That's because any use of lethal force against a "U.S. person," such as Aulaqi, requires White House review.

The subsequent chain of events was a chilling demonstration of Aulaqi's power as an al-Qaeda facilitator: On Nov. 5, U.S. Army Maj. Nidal Hasan killed 13 of his fellow soldiers at Fort Hood, Tex.; Hasan had exchanged 18 or more e-mails with Aulaqi in the months before the shootings, according to the Associated Press. Then, on Christmas Day, Umar Farouk Abdulmutallab, a Nigerian who had been living in Yemen, tried to blow up an airliner bound for Detroit; he is said to have confessed later that Aulaqi was one of his trainers for this mission.

The Aulaqi case is worth revisiting, for several reasons. With the advantage of hindsight, it seems clear that he was indeed a dangerous person. If the United States had helped the Yemenis capture him, this might have disrupted the actions of Hasan and Abdulmutallab. So it's useful to examine the rules that limited action in October and the quality of intelligence that was available for decision-makers.

Such retrospective analysis is unfair, to be sure, but it provides a useful lens for assessing policy choices. After Sept. 11, 2001, there were detailed investigations of the Clinton administration's failure to capture or kill Osama bin Laden in the late 1990s and of the Bush administration's failure to heed warnings before the 2001 terrorist attacks.

What's surprising about the Aulaqi case is just how much information the FBI and CIA already had on him. At least two of the Sept. 11 hijackers had attended a mosque where he preached in San Diego. His phone number was found in the Hamburg apartment of Ramzi Binalshibh, often described as "the 20th hijacker." The FBI was interested in Aulaqi even before Sept. 11, because of his alleged fundraising for Hamas. So there was U.S. intelligence concern about him as a possible al-Qaeda operative dating back nearly a decade.

Hasan had attended another mosque where Aulaqi preached, in Northern Virginia. Indeed, according to Aulaqi, when Hasan first contacted him by e-mail on Dec. 17, 2008, he wrote: "Do you remember me? I used to pray with you at the Virginia mosque." In another e-mail, Hasan is said to have told Aulaqi: "I can't wait to join you" in the afterlife.

Military-intelligence investigators apparently reviewed these e-mails before the Fort Hood shooting, but they did not prompt action. If they didn't meet the threshold for concern, something was wrong with that threshold.

A U.S. official familiar with the case responds: "Aulaqi didn't go operational until November. It wasn't a case of missed intelligence, not at all. The Yemenis didn't even think he had assumed an operational role." This official also notes that "there was an American policy decision not to put boots on the ground," limiting any military action.

In retrospect, it seems clear that the available information should have triggered closer scrutiny of both Hasan and Aulaqi. We'll never know whether such action could have deterred Hasan. As for Aulaqi, officials now say he is on the U.S. target list.

Finally, does it make sense to require NSC permission before a potentially lethal operation against a U.S. citizen such as Aulaqi? My answer would be yes. The higher threshold that was in place in 2009 was appropriate then and still is: Use of lethal force always needs careful controls -- especially when it involves Americans.

The "what ifs" about Yemen are troubling, not least because they are a reminder the intelligence agencies have to make life-or-death calculations based on fragmentary evidence -- with catastrophic consequences if they're wrong. What was needed, we can now see, was hard information last October that could have met the legal standard appropriately in place.